G CONSIDERATION
137 It is well to commence with what in my mind are the two most significant points made by the Union (see [124] and [136] above).
138 The non-pecuniary prejudice suffered by workers being unlawfully terminated cannot be gainsaid and ought not to be minimised.
139 Work is more than a way to make a living; it is a form of continuing participation in society. The rights of workers, like all other rights, are based on the nature of the human person and on their transcendent dignity. Justice Bromberg, with respect, put it well in Quinn v Overland (at 60 [101]), when his Honour observed:
There is now a greater recognition than ever that employment is important to an employee not simply because it provides economic sustenance. Workplaces are a hub of important human exchanges which are vital to the wellbeing of individual workers. Work provides employees with purpose, dignity, pride, enjoyment, social acceptance and many social connections. As well, the performance of work allows for skill enhancement and advances career opportunities. These non-pecuniary attributes of work are important and their denial can be devastating to the legitimate interests of any worker, either skilled or unskilled.
140 I suspect this is the reason why it seems to me likely that a significant (but unascertained) number of the outsourced employees would wish to obtain reinstatement. A number of the outsourced employees, especially those towards the end of their working life, have been deprived (initially, at least, by an unlawful action) of the opportunity of seeing out their productive working life with the matchless blessing of a worthwhile job. In this way, by the contravening conduct, they have been prevented from performing valuable labour and enjoying the satisfaction and self-respect that such labour often brings. This is a factor that tends to point strongly towards reinstatement for such persons being an appropriate remedy.
141 A further factor supporting reinstatement is that to decline reinstatement might be thought to give insufficient weight to the important remedial purpose of placing outsourced employees back in a position where they are able to exercise the rights the subject of the contravening conduct. Relatedly, it would be giving insufficient weight to the impact on the ability of the Union to advocate for, and represent, the industrial interests of its members in Qantas' business and this has the obvious potential to reduce the collective strength of the Union and the interests of its members contrary to the statutory purpose of the FWA. Although one needs to recognise that only 39% of the outsourced employees are members of the Union, all employees' interests are potentially furthered by the exercise of collective industrial rights. Again there is real substance to this submission, and I can understand why, if the only remedy is compensation and pecuniary penalties, collective industrial rights will not be protected in the same way as a reinstatement order. But these considerations must be balanced with all relevant factors. Although clearly a relevant factor favouring the making of a reinstatement order, there is a prospect that focussing too closely on placing the outsourced employees back in a position where they are able to exercise particular rights and the vindication of those collective rights protected by the FWA (which for obvious reasons is a matter of especial interest to the Union), could distract from my task of determining the appropriate remedy in all the circumstances of the case.
142 I will deal below with all the other contentions of the Union, but it is convenient to now turn to the compelling reasons to refuse the global reinstalment relief sought.
143 First, in assessing whether a remedial order is "appropriate", it goes without saying that the Court should not make an order that would be futile, or incapable of performance. But the question of whether an order is "appropriate" is not answered by simply asserting it is capable of being implemented. The fastening upon an appropriate remedial response can involve a comparison with differing remedial responses that may be available depending upon the facts of the case. If two quite different responses are capable of being implemented, but one ranks far higher in an assessment of what is appropriate (including displacing what might be perceived to be a presumptive remedy in an "ordinary case"), then it stands to reason that the less appropriate response ought to be discarded. Put another way, the discretion involved in making a remedial order in an appropriate case is necessarily informed not only by the policy imperatives to further the object of the statute and the other factors identified above, but also by the comparative cost and delay associated with differing responses. They each may have different pros and cons, and these pros and cons must (or at least should) be considered in assessing appropriateness of the proposed remedy sought. In making this point I recognise that unlike at an earlier stage of the debate as to relief, the Union does not now advance global reinstatement and compensation as pure alternatives; the point I am making involves a comparison between a global reinstatement order (together with some future limited individual compensation order that might be available subject to any repayment of benefits obtained by reason of retrenchment) and an order for compensation for the outsourced employees in the absence of reinstatement (and absent any repayment of sums already paid).
144 There will be examples where the difficulties in reinstatement, although not properly described as incapable of performance, would not be "appropriate". A good example is provided by Gray J's decision in Chelvarajah v Global Protection Pty Ltd [2004] FCA 1661; (2004) 142 FCR 296, where a security guard was dismissed but the respondent had subsequently ceased to carry on its security business. Asked to consider whether the guard should be reinstated, his Honour observed (at 306-307 [35]):
… It is not impossible for a company, still in existence, to carry out the order of the Commission. For it to do so, however, the respondent would be required to embark upon the conduct of a business which it does not conduct presently. It would have to enter into a contract or contracts with a person or persons unknown to provide the services of one or more security guards. It would then be required to administer those contracts, and to do all that is necessary to continue to operate such a business, if it were to respect the right of Mr Chelvarajah to continue in employment, once he was appointed. It would be required to do these things to avoid being found to be in contempt of court and being punished by a fine or by sequestration of its assets. Such a burden is too great to impose.
145 His Honour continued (at 308 [37]):
… It is … easy to accept that there may be many cases in which an employer may be required to create the position to which it is ordered to appoint a dismissed employee. Such cases will be those in which the employer continues to conduct the same, or a similar, business to that conducted at the time of the termination of employment. They will be cases in which the position created will have attached to it duties on the employee to perform work, provided that there is no impediment to the employee performing work. They will not be cases such as the present, in which the employer would have to create not only the new position, but an entire new business, in which the position could be located.
146 In the present case, in the events that have happened, one simply cannot ignore the reality that there are no extant positions to which the outsourced employees may be appointed without the re-creation of a ground handling operation of the type previously carried out by Qantas. Without the re-creation of this aspect of the business, including the necessary capital expenditure and third party transactions which would allow the status quo ante to be restored, there is no business in which to create any such positions and Qantas cannot provide any affected employee with any work of the nature they were performing prior to dismissal.
147 This is not a case where reinstatement orders would be futile because compliance would not be possible, but as my findings make clear, compliance would involve (see [28] and [75] above) Qantas needing to put in place a complicated process to re-create substantially its Airports Ground Operations business. This course would include, among other things: (a) capital expenditure (at a far from propitious time for the business) including, but not limited to, buying back GSE; (b) making lease arrangements; and (c) recruiting up to 50 ground operations executive managers across 10 ports. The budgeted costs savings would need to be revisited. This re-creation is a far from insignificant endeavour involving very considerable cost and the potential for significant delay before it can be implemented. These practical consequences of the proposed global reinstatement order necessarily bear upon the assessment of whether a reinstatement order could be properly regarded, in the bespoke circumstances of this case, as "appropriate". A fortiori when the making of a compensatory order putting each affected employee in the position they would have been but for the contravening conduct could be made (and be made against respondents where there is no suggestion that a compensatory order would not be paid), the apparent suggestion by the Union (relying upon Sunland) that the Court ought to have no or little regard to the effect of the reinstatement orders on the wrongdoer (no matter how great the organisational disruption, cost or inconvenience to them) cannot be right. The facts in Sunland are a world away, involving the proposed reinstatement of two former employees into an existing business function.
148 Secondly, as I raised at the case management hearing when the issue of a global reinstatement order was proposed, an individual opt-out mechanism is somewhat problematical absent clarity as to the quantum of the alternative compensation remedy or the specific basis of its calculation. As Qantas submits, individuals might have some idea about what their past economic loss looks like, but little idea of what their future economic loss might be, meaning they would be uncertain about the impact on their compensation entitlements if they elect to opt-out of reinstatement. There may also be some additional incentive for outsourced employees to not opt-out. The proposal of the Union is that outsourced employees would come to realise that during the first months after reinstatement they would likely receive wages while not being required to work. As such, the reinstated employees may have no or little work to do for a significant period after reinstatement, while receiving full pay. This factor, and the regrettable lack of specifics as to what percentage of outsourced employees actually want to be reinstated, are not pointers to reinstatement being appropriate.
149 Thirdly, and at some risk of understatement, I consider that any global reinstatement order is likely to produce real uncertainty and ongoing disputation. As Qantas and QGS correctly submit, it is not difficult to foresee disputes over matters including: (a) what commercial terms and what level of rent demanded by the (monopoly) lessor of each of the 10 ports should Qantas be required to accept (assuming that such space to rent is available); (b) what commercial terms should Qantas be forced to accept with each of the nine contractors in renegotiating each of the 20 commercial contracts with them for the purpose of facilitating any likely dual ground handling model; (c) what commercial terms and at which prices should Qantas pay the contractors for the GSE; and (d) what parameters should be imposed on Qantas in terms of raising the additional funds required to re-create and operate ground handling as before (including the necessary capital expenditure to allow the business to be run).
150 I should note that despite what I have said and its significance, reliance on the third point as a discretionary factor against making a re-instatement order causes me some perturbation. Problems with enforcement are likely to arise even if there was a measure of goodwill and co-operation between the parties. But as was foreshadowed by Qantas and QGS in final submissions, ensuring compliance when so many variables are in play (and in circumstances where the parties are at loggerheads) will, I suspect, be like presiding over the litigation equivalent of the Battle of the Somme. I am conscious that Qantas and QGS should not, in effect, be "rewarded" for creating any problems with ongoing supervision and enforcement, but they are entitled to rely on their legal rights and one cannot ignore that any reinstatement regime as would be required in this singular set of circumstances is likely to cause ongoing problems.
151 When one considers all of the above, the conclusion that a global reinstalment order is not an appropriate order to make in all the circumstances is not attended by any doubt. This is reinforced (but not dependent upon) the fact that if the outsourced employees were reinstated, Qantas would retrench them as soon as is practicable to do so, as explained below.
152 The above analysis has already dealt sufficiently with many of the issues raised by the Union (identified and summarised into 12 points at [124] to [136] above), but it is appropriate, at the risk of repetition, to make the following additional points:
(1) Although the important public and remedial purpose of the provision contravened is to protect employees from their employer preventing them from exercising a workplace right, it puts the matter far too highly to assert that reinstatement is the only way to remedy the contravention. Depending upon the circumstances, it may be the necessary remedy, but this it is not such a case.
(2) The suggestion in the evidence that Qantas will not take steps absent compulsion to re-create the infrastructure and conditions necessary for outsourced employees to be reinstated is not "remarkable and indicative of an intention to not comply with an order for reinstatement"; it reflects the uncontentious reality that Qantas does not wish to make any capital expenditure in respect of GSE, nor employ new staff given it continues to face serious financial and operational difficulties and has a single-minded focus on reducing costs. Put in blunt terms, the commercial reality is that Qantas perceives the commercial consequences of the making of a general reinstatement order as seriously inimical to its interests. It is not surprising that absent compulsion and subsequent close supervision (to the extent such supervision is practicable), the steps necessary to implement reinstatement will not happen. This is so plain that Mr David has already made what amounts to a decision to sack any outsourced employees if they are reinstated. I do not perceive this as a minatory indication Qantas and QGS will not comply with orders of the Court; rather, it highlights the necessity for orders to be as prescriptive and precise as possible and that there will need to be close attention of the Court in the event something uncertain arises. Any "appropriate" remedy must reflect the reality that Qantas will do no more than is necessary to comply with any Court orders.
(3) Whatever its merits in a so-called "ordinary case", in the light of the above, the suggestion made by the Union in reply that an order could simply be made requiring "Qantas take all steps and do all things necessary to ensure that [outsourced employees] are re-employed in their previous positions as they existed at the time of termination" is misconceived as, in the complex circumstances of this case, an order cast in such general terms would be both hopelessly ambiguous and require constant supervision.
(4) As noted above, the Union posits that there must be "good reason" as to why reinstatement should not be ordered, so as to displace the prima facie position that reinstatement should be ordered. Whether this is the principled approach, or the task is simply to fasten upon the remedial response that is appropriate in the circumstances, there is a danger in analogising from other cases. Although there was no breakdown of trust and confidence and a significant number of outsourced employees likely wish to be reinstated (and these factors point in favour of a reinstatement order being made), all the relevant circumstances must be considered including those set out above, which are compelling.
(5) Resort to maxims can obscure rather than illuminate. The maxim the Union calls in aid reflects the same policy behind the salient tenets of equity that a party seeking relief must come with clean hands and that a party cannot secure the assistance of a court while enjoying the fruit of their own wrong. So much may be accepted as a general proposition. But such assertions, while perhaps understandable given Qantas' stated intention that it would not re-create a ground handling business, can be distracting. It might be thought, as the Union's submissions suggest, Qantas and QGS have "gotten away" with something by avoiding reinstatement, but any order made pursuant to s 545 of the FWA must be remedial, compensatory or preventative (see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 (at 193 [110] per Keane, Nettle and Gordon JJ). My focus at this Reinstatement Hearing is not on deterrence and a condign response to wrongdoing (including the cardinal notion that a wrongdoer must feel a "sting", and not secure a benefit from their non-compliance). Such notions will be highly relevant if, and when, I consider penal orders.
(6) Although there may be growing momentum around recovery, it is agreed that flying activity has dramatically decreased, there have been ongoing stand downs of employees and Qantas continues to face serious financial and operational difficulties as a result of the ongoing pandemic, including uncertainty associated with the level of flying activity.
(7) Finally, I accept the failure to make a global reinstatement order, in addition to reducing the collective strength of the Union, also has the potential to reduce the interests of its members more generally. A cost saving for a corporation, looked solely from the perspective of the corporation, is desirable. But to the employees affected who may not be able to get a replacement job, or secure a similar job on inferior terms and conditions, the "cost saving" looks very different. The ultimate effect of the outsourcing will be to reduce the wages and conditions of those doing ground handling work who, to the extent they do work for Qantas, will be employed by contractors. But I am not convinced this will be cured by the relief sought. Even if granted, as soon as it is possible, Qantas will pursue the very significant savings associated with outsourcing it has identified. Any appropriate remedial response to the contravening conduct lies elsewhere, as does any alleviation of any more general perceived problems caused by the increasingly widespread industrial phenomenon of outsourcing.
153 I should also mention an additional argument advanced by Qantas and QGS that was the subject of very detailed oral evidence (both in chief and in cross-examination) as to whether, if Qantas had not made the outsourcing decision in November 2020, it would, by August 2021, have decided to implement that outsourcing (that is, when each enterprise agreement was "open" and there was still significant operational disruption). The evidence in support of this submission relied on elaborate counterfactuals, and it was ultimately said by Qantas that, if such a finding was made, "the Court does not have power to order reinstatement". This argument is fallacious. There is no want of power, as the order would still be remedial. But when it comes to discretion, the notion that any reinstated employees would be receiving a "windfall" is unpersuasive. The real question for present purposes is not an examination of what would have happened in a parallel universe, but rather what would likely happen in the future if the outsourced employees were reinstated.
154 Having noted this, there is a somewhat different point to be made, which is much more relevant. The findings I have already made, and the evidence at this hearing, all point compellingly to the notion that if there a is lodestar in divining the actions of Qantas in the current environment, it is the minimisation of costs. I accept that Qantas, at all material times, would have tried, if the rewards outweighed the risks, to minimise the costs of ground operations. To the extent this conclusion is useful, it always tended to point to the likely inevitability of retrenchment at some time in the future, should the outsourced employees be reinstated. Given my previous findings as to the overriding motivation of Qantas, its focus on costs savings, and its subjective commercial interests, even without the oral evidence at the hearing, I would have been inclined to think that another exercise in retrenchment by way of outsourcing any reinstated employees was likely to be attempted when considered practicable to do so. Indeed, it would have been naïve to think otherwise. The evidence of Mr Hughes and Mr David established beyond peradventure that Qantas would only do what it was legally required to do in setting up a ground operations business (and no more) and retrench any reinstated employees as soon as it could.
155 I appreciate that hearing this will cause distress and discomfort to some of the outsourced employees, and be particularly upsetting to those suffering real non-pecuniary loss associated with a loss of work. It may be that different executives in different public companies (still acting consistently with their duties to their employer and the company's shareholders) could rationally place a higher premium on non-financial matters such as loyalty and staff welfare than those within Qantas, but that is not really to the point.
156 It is not the role of the Court to make moral or ethical judgments about the priorities of Qantas, its focus on maximising ownership returns and its judgments as to how this impetrative is balanced ethically with the responsibilities, at its perceives them, to its employees, including to its long standing employees. Economists, philosophers and theologians have written about this and related topics for hundreds of years since Adam Smith wrote An Inquiry into the Nature of the Wealth of Nations (1776) (as an aside, for an interesting introductory article, see Kolstad I, "Why Firms Should Not Always Maximise Profits" (2007) 76 Journal of Business Ethics (2007) 137). But an enquiry into the subjective motivations and commercial priorities of Qantas assumes some present significance because of the reality of what Qantas will do if the outsourced employees were reinstated.
157 In making these remarks and accepting that retrenchment as soon as is practicable is a factor (although in no way determinative) in favour of refusing reinstatement, I am cognisant of what McHugh J said in Blackadder (at 544-545 [14]) that, giving full effect to the term "reinstatement" means "the employee is to be given back his "job" at the same place and with the same duties, remuneration and working conditions as existed before the termination". But the Court's reasoning in Blackadder must be viewed in the context of the facts of that case. There, the Australian Industrial Relations Commission found that a single employee had been unfairly dismissed from his role as a boner in an abattoir and ordered that he be reinstated. Although this occurred, and the employee's role was still available at the abattoir, the issue that arose (and which the High Court found was a breach of the Commission's orders), was that the employee was not actually given any work in that role. It is not a close analogy, but I accept in making the reinstatement order, consistently with Blackadder, the order would require Qantas to take steps to ensure the reinstated employees are given back their jobs. This would happen if I ordered reinstatement (notwithstanding all the delay, cost and complications not evident in a case like Blackadder), but this does not mean that retrenchment would not happen as soon as Qantas was advised by its industrial relations team and specialised industrial relations solicitors that it could do it legally; nor does it make global reinstatement appropriate, when other, more appropriate remedies, are available in these unusual circumstances. The commercial reality of the situation must bear some importance in exercising the broad discretion in s 545(1) of the FWA.
158 The weight of all the considerations raised by the Union (each of which I have taken into account) when balanced with all relevant considerations I have identified, suggest that the overwhelmingly appropriate remedy is compensation and compensation alone (where, among other things, the Court can engage in the proper exercise of evaluating the competing possibilities and attaching a value to the lost opportunity of future earnings and also assess other loss, including non-pecuniary loss). I stress that I am dealing with a compensatory and remedial remedy at the Reinstatement Hearing. Pecuniary penalties appropriately fashioned to serve the need of specific and general deterrence will appropriately address the Union's concern, expressed repeatedly, that absent reinstatement, Qantas and QGS will be perceived as having "gotten away with" contravening conduct.
159 I should also turn to arguments advanced by Qantas and QGS, to which I attach little or no weight:
(1) Although Qantas and QGS in its written submissions relied significantly on prejudice to third parties, although not irrelevant, I do not regard this as a particularly significant factor (given that at all material times it was plain as a pikestaff that a reinstatement order would be sought). There will be some prejudice to the contractors, which would not exist if compensation was ordered; for example, each contractor would potentially lose the benefit of the contracts they entered into with Qantas (subject to the terms of those contracts), but there is no basis to conclude that these contractors would not have been fully aware of this risk. If the contractors were not aware of the dispute and the related fact that the Union was seeking reinstatement, the contractors would have had to have been the aviation equivalent of Rip Van Winkle. Moreover, Qantas and QGS accepted that the terms of those contracts meant, at least for some contractors, a remedy would be available to contractors to alleviate such prejudice in the form of loss of bargain damages. More relevantly, however, I do accept that a number of employees of those contractors could possibly see their positions made redundant and it is reasonable to infer that they may be retrenched, although there was little or no evidence as to the likelihood of this occurring and the specifics of this prejudice.
(2) Also connected to prejudice was the submission of Qantas that if it was deprived of the costs saving realised because of outsourcing, that cost saving (made all the more urgent by the extended effects of the pandemic) would need to be realised elsewhere, and this "would adversely impact other employees within the Qantas Group". This might be the case, but on the material before me, it is far too speculative to be a prejudice of any significance. For example, for all I know, significant savings might be achieved by addressing any imbalance between the remuneration paid to the highest ranking executives in the Qantas business, as compared to the average remuneration of other Qantas staff. It would be stretching matters to suggest that this would be a "prejudice" of any weight to which the Court should pay any regard. Further, for all I know, additional Commonwealth Government subsidies may be provided to Qantas (as has been the case during recent times when its finances have been devastated by the effects of the pandemic). It is all speculative and nothing much can be made of this factor relied upon by Qantas and QGS.
(3) Any suggested prejudice because of the exposure of Qantas to loss of bargain damages or other compensatory damages (arising upon a repudiation by Qantas or an inability to perform the contracts entered into with the contractors) is, to my mind, of little moment. Qantas was well aware that reinstatement relief was being sought when it bargained with the contractors, and made a commercial choice it would not seek to pay the contractual price of ensuring it could terminate the contracts at its election. That may be entirely rational commercial behaviour, but running this risk does not give rise to prejudice of any significance in the circumstances of this case.
(4) Findings were made above as to the forensic choice of the Union to eschew injunctive relief and the prospect of any early hearing. Qantas says the Union's "election not to seek interim relief might not be a defence against final relief per se, [but] such an applicant must live with the consequences of their choice". This is true in a limited sense (because a global reinstatement order would have been unnecessary if the Union had secured an interlocutory injunction or obtained a finding of contravening conduct prior to the outsourcing decision being implemented). But a wariness in providing an undertaking as to damages (which had been flagged by Qantas) was understandable, and the delay of the Union was not an unreasonable one. More fundamentally, as I explained above, the relevant consideration is whether there is an element of injustice occasioned to either a party or third parties that would not have been present had the relief been sought without any proven relevant delay. I do not consider that any element of injustice as identified by Qantas and QGS was caused by delay of the Union - certainly not the involvement of contractors in circumstances where there was no evidence Qantas and QGS were not fully aware there was a risk the Union would seek reinstatement.
(5) Qantas and QGS are perfectly entitled to maintain that I misconceived what went on in 2020 and fell into error; that is for others to decide. But unless they are set aside, the findings in the principal judgment and declaratory judgment stand. One of the submissions made by Qantas and QGS at the Reinstatement Hearing sought to minimise those findings and, more generally, Qantas and QGS seemed to exhibit a certain insouciance about them. It was submitted expressly that this is "a case where there has been no positive finding to the effect that the impugned decision was for an unlawful purpose". This overlooks the fact that both Mr Jones and Mr Hughes were expressly found to have been motivated by the unlawful purpose proscribed by s 340(1)(b). The implicit suggestion that the nature of the findings of contravention by Qantas mean that the remedial response contended for by the Union is inapposite, is incorrect.
160 Finally, for completeness I should note that given I have not reached the level of satisfaction to conclude that the Union incited or aided the making of the Facebook posts as alleged, it is unnecessary to consider any question as to whether such conduct would amount to a form of disentitling conduct of sufficient seriousness to be relevant to the exercise of discretion and, in particular, how any such conduct by a representative would impact upon the relief sought for the benefit of those represented (a notion which raises interesting questions, but was not explored by either party before me).